Carbolineum Wood Preserving & Manufacturing Co. v. Meyer

• Decision Date: 06 March 1899
• Citation: 76 Miss. 586,25 So. 297
• Parties: CARBOLINEUM WOOD PRESERVING & MANUFACTURING CO. v. EDWARD MEYER
• Court: Mississippi Supreme Court

25 So. 297

76 Miss. 586

CARBOLINEUM WOOD PRESERVING & MANUFACTURING CO. v. EDWARD MEYER

Supreme Court of Mississippi

March 6, 1899

November 1898

FROM the circuit court of Harrison county, HON. T. A. WOOD, Judge.

The opinion of the court sufficiently states the case.

Affirmed.

T. M Miller, for appellant.

1. The court erred in overruling defendant's demurrer to plaintiff's replication. The writ of attachment was the basis of the suit and should have been abated. The replication of plaintiff admitted the pendency, in the chancery court, of a suit for the identical demand against this nonresident corporation, and there can be no question but that the chancery court had ample power and jurisdiction to adjudicate on the merits of the claim. The defendant therefore, had the right to repel, by its plea, the attempt to vex and harass it with two suits at the same time for the same cause of action. This statement of the law is believed to be axiomatic and fundamental. All authorities support it. None deny it. The suit pending in the chancery court entitled the plaintiff to the writ of attachment in aid of it as a mere conservatory process. Now, the force of the plea in abatement was not denied, but it was attempted to escape it by alleging that other matters were alleged in the bill in the chancery court which alone gave that court jurisdiction of the claim. Thus stating a mere conclusion in the mind of the pleader and not a single fact upon which to rest it. Facts and not arguments are required according to the universal rule of pleading, so that the court can judge of their sufficiency when stated. The result is the admission stands that a former suit was pending and still at issue in another court for the same demand. The suggestion that this suit was merely one in rem., the defendant being found in the county and served with process, can have no weight. Payne v. Harold, 40 Miss. 498; James v. Dowell, Smed. &amp M., 333; Wharton v. Conger, 9 Smed. & M., 510.

2. If mistaken in our understanding of the law, that two suits cannot be maintained at the same time on the same cause of action, and that on a plea in abatement of the writ in second suit it will be quashed in that state of the case, still the judgment of the lower court must be reversed and a new trial awarded, because of the error in granting plaintiff's first instruction and refusing a new trial on the ground of such error.

It will be observed that the issue between the parties was solely whether or not the plaintiff voluntarily rendered service as a manager of the defendant's mill with the understanding and agreement that he was to have only such compensation as would result to him from transporting lumber on his schooner and as a stockholder of the defendant corporation, or whether he rendered the service and the same was accepted without any agreement. In the former case, and as the instructions charged, he was entitled to nothing. Whereas in the latter he was entitled on a quantum meruit to recover for the value of his service. In such state of case and in view of the testimony no misleading instructions should have been granted. The testimony showed that the plaintiff was entitled to one hundred dollars per month or nothing. In other words, to the full amount sued for or nothing under that item.

In view of the state of the evidence the defendant would not have been prejudiced if the court had told the jury to find the full amount if they believed that the service had been rendered with no understanding that the same should be without compensation. But the jury appear to have been in a compromise frame of mind and...